Citation Nr: 18156056 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-38 673 DATE: December 6, 2018 ORDER The reduction in rating from 10 percent to noncompensable, effective December 1, 2015, for status post open reduction internal fixation, fracture long, ring, and little fingers of the left hand, with bone graft of ring and little fingers (hereinafter “disability of the ring and little fingers of the left hand”), was improper and the 10 percent rating is restored. REMANDED Entitlement to a rating in excess of 10 percent for disability of the ring and little fingers of the left hand is remanded. FINDINGS OF FACT 1. The reduction in the rating for the Veteran’s disability of the ring and little fingers of the left hand from 10 percent to noncompensable resulted in a reduction of compensation payments that were being made, and the notice provisions of the regulation governing compensation rating reductions were met. 2. The 10 percent rating for disability of the ring and little fingers of the left hand was in effect for more than 5 years, but less than 20 years, at the time of the September 2015 rating decision that decreased the evaluation to noncompensable, effective December 1, 2015. 3. The September 2015 rating decision did not reflect consideration of or make findings of whether the evidence shows it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. CONCLUSION OF LAW The reduction of the rating for service-connected disability of the ring and little fingers of the left hand from 10 percent to noncompensable was improper. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.1, 4.2, 4.10, 4.13 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1990 to October 1997. A claim stemming from a rating reduction action must be phrased as whether the reduction was proper, not whether the appellant is entitled to an increased rating. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). In this case, the Veteran has appealed the September 2015 rating decision that reduced the claim at issue from 10n percent disabling to noncompensable. The Board notes that the June 2016 Statement of the Case (SOC) raised the issue of entitlement to an increased rating for status post open reduction internal fixation, fracture long, ring, and little fingers of the left hand, with bone graft of ring and little fingers. Thus, the Board has rephrased these issues to reflect the separate increased rating and rating reduction issues. See generally Fenderson v. West, 12 Vet. App. 119, 126 (1999). Restoration of the 10 percent rating for disability of the ring and little fingers of the left hand, effective December 1, 2015 Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When determining whether a reduction was proper, there are two sequential questions that must be addressed. First, whether the Agency of Original Jurisdiction (AOJ) satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105. If so, the second question concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. § 3.344. With regard to the initial question, the Board observes that the rating reduction resulted in a reduction of VA compensation being paid to the Veteran reducing his overall rating from 20 percent disabled to 10 percent disabled, effective December 1, 2015. Thus, the procedural protections of 38 C.F.R. § 3.105(e) apply. In June 2014, the AOJ notified the Veteran of the proposed reduction in rating for the claim at issue. While a July 2014 VA Form 27-0820 (Report of General Information) documents the Veteran called VA and reported he will submit evidence, no new evidence was received within 60 days and the Veteran did not request a hearing. In a September 2015 rating decision, the AOJ reduced the evaluation of the disability to noncompensable, effective December 1, 2015. Therefore, the procedural protections of 38 C.F.R. § 3.105(e) have been satisfied. The analysis thus proceeds to whether the reduction was factually warranted. General regulatory requirements for disability ratings must be met in making a determination regarding whether improvement is shown. Brown v. Brown, 5 Vet. App. 413 (1993). The entire recorded history of the disability must be reviewed. 38 C.F.R. §§ 4.1, 4.2. The evidence must reflect an actual change in the disability and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must further show that the disability has improved in such a manner that the Veteran’s ability to function under the ordinary conditions of life and work has been enhanced. 38 C.F.R. §§ 4.2, 4.10; Schafrath, 1 Vet. App. at 589. In this case, the Veteran’s 10 percent disability rating was awarded effective November 1, 1997 in a July 1998 rating decision. The rating was reduced effective December 1, 2015. Accordingly, the 10 percent rating was in effect for more than 5 years, but less than 20 years. In certain rating reduction cases where a rating has been at a level of 5 years or more, only re-examinations that demonstrate clear improvement in these disabilities will warrant a reduction in rating. 38 C.F.R. § 3.344(c). Rating agencies will handle cases affected by change of medical findings so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. 38 C.F.R. § 3.344(a) and (b). VA must find the following before reducing a rating: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and, (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995). Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. In short, “the Board must ‘establish, by a preponderance of the evidence and in compliance [with] 38 C.F.R. § 3.344, that a rating reduction is warranted.’” Green v. Nicholson, 21 Vet. App. 512 (2006). If there is any doubt, the rating in effect will be continued. See Brown, 5 Vet. App. at 417-18. In general, the AOJ’s reduction of a rating must have been supported by evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer, 2 Vet. App. at 277. In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). Upon consideration of the evidence of record under the laws and regulations as set forth above, the Board concludes that reduction of the disability evaluation for the Veteran’s service-connected disability of the ring and little fingers of the left hand from 10 percent to noncompensable was improper. The initial 10 percent evaluation was assigned based on the findings of an March 1998 VA examination, prior to the time period now on appeal. In June 2012, the Veteran submitted a claim for an increased rating of the disability. In a September 2012 rating decision, the AOJ declined to grant an increased rating. No notice of disagreement or additional evidence was filed within one year, and that decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2018). The disability at issue was reevaluated in September 2012 and June 2014. After the June 2014 VA examination, the AOJ proposed a reduction based on the measured range of motion of the left ring and little fingers in the June 2014 rating decision. In a September 2015 rating decision, the AOJ reduced the rating to noncompensable, effective December 1, 2015. However, in an October 2015 notice of disagreement, the Veteran described how his disability has continued to affect him since his original in-service surgery. See also August 2016 Substantive Appeal; December 2015 Veteran Statement. While the June 2014 VA examination contained measurements of range of motion and evaluation of the disability at issue, the examiner did not offer an opinion regarding the Veteran’s ability to function under the ordinary conditions of life and work. Additionally, the June 2014 rating decision, September 2015 rating decision, and June 2016 SOC did not reflect consideration or make findings of whether the evidence shows it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. As a result, the Board finds that the reduction in rating from 10 percent to noncompensable, effective December 1, 2015, was improper because the provisions of 38 C.F.R. § 3.344 were not considered. Accordingly, the 10 percent evaluation for disability of the ring and little fingers of the left hand is restored as though the reduction had not occurred. See 38 C.F.R. § 3.344(a), (b); Schafrath, 1 Vet. App. at 589; Kitchens, 7 Vet. App. 320; Brown, 5 Vet. App. at 413. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for disability of the ring and little fingers of the left hand The Veteran last underwent a VA examination for the issue on appeal in June 2014. The Veteran should be provided an opportunity to report for an additional VA examination to ascertain the current severity and manifestations of his service-connected disability of the ring and little fingers of the left hand. Additionally, the June 2014 VA examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While the examiner opined that flare-ups less likely than not limited functional ability, and stated that an opinion regarding the range of motion of the fingers at issue could not be provided without resort to speculation, the examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups, and the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file all outstanding VA treatment records dated since December 2015. If these records cannot be located or do not exist, it must specifically document the attempts that were made to locate them and the Veteran must be notified. 2. Then, schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his service-connected disability of the ring and little fingers of the left hand. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should request the Veteran to demonstrate the degree of limitation of loss during a flare or repetitive use, and express the Veteran’s limitations in degrees of motion loss if possible. To the extent possible, the examiner should identify any symptoms and functional impairments due to the disorder of his long, ring, and little fingers of the left hand alone and discuss the effect of the disorder of his long, ring, and little fingers of the left hand on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should also address the following questions: (a) Is there any favorable or unfavorable ankylosis of the long, ring, and/or little fingers of the Veteran’s left hand? (b) Is functioning of any of the fingers so diminished that amputation with prosthesis would equally serve the Veteran? The examiner must provide all findings, along with a complete rationale for any opinions provided. 3. Then, review the examination report and medical opinions to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. (Continued on the next page)   4. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Howell, Associate Counsel